92 Decision Citation: BVA 92-14455
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-52 967 ) DATE
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THE ISSUE
Entitlement to a total evaluation based on individual
unemployability due to the service-connected disabilities.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) from a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida. The appellant is a veteran of the Korean
conflict. A July 1991 rating decision denied entitlement to
a total evaluation based on individual unemployability due
to the service-connected disabilities. The notice of
disagreement for the above determination was received on
September 11, 1991. The statement of the case was issued on
October 8, 1991. The substantive appeal was received on
November 29, 1991. The veteran's case was referred to The
American Legion for written argument in December 1991. The
case was received and docketed at the Board in January
1992. The American Legion submitted additional written
argument on the veteran's behalf in March 1992, and the case
is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in denying
his claim of entitlement to a total evaluation based on
individual unemployability due to his service-connected
disabilities. He argues that it is his service-connected
disabilities, and not his nonservice-connected disabilities,
which have prevented him from obtaining or retaining
substantially gainful work, thereby warranting assignment of
a total compensation evaluation based on individual
unemployability.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the claim for a total evaluation based on
individual unemployability due to the service-connected
disabilities.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The service-connected disabilities, when evaluated in
association with the veteran's educational level and
occupational experience, are not sufficiently disabling as
to preclude all kinds of substantially gainful employment.
CONCLUSION OF LAW
The requirements for a total evaluation based on individual
unemployability due to the service-connected disabilities
have not been met. 38 U.S.C.A. § 1155, 5107 (1991);
38 C.F.R. §§ 3.340, 3.341, Part 4 and 4.16 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that we have found that the veteran's claim is
"well-grounded" within the meaning of 38 U.S.C.A. § 5107(a)
(1991). We are also satisfied that all relevant facts have
been properly developed. Murphy v. Derwinski, U.S. Vet.
App. No. 90-107 (Nov. 8, 1990), and Sanders v. Derwinski,
U.S. Vet. App. No. 89-84 (Nov. 30, 1990). No further
assistance to the veteran is required in order to comply
with our statutory duty to assist him in the development of
facts pertinent to his appeal. Littke v. Derwinski, U.S.
Vet. App. No. 89-68 (Dec. 6, 1990).
Service connection has been established for impairment of
the left elbow (minor), rated as 50 percent disabling;
incomplete paralysis of the left ulnar nerve (minor), rated
as 20 percent disabling; impairment of supination and
pronation of the left hand (minor), rated as 20 percent
disabling; residuals of an injury of the right knee,
residuals of a fracture of the right third metacarpal, and
residuals of an injury of the right hand, each rated
noncompensable. The combined schedular evaluation is
70 percent. Service connection is not in effect for
diabetes mellitus, spastic colon, varicose veins or right
mid and forefoot injury or amputation. An employment
information statement from the veteran on file shows that he
became too disabled to work in December 1979. He reported
occupational experience as a railroad conductor from 1964 to
December 1979, and noted that the most he had ever earned in
any one year was $45,000 which was in 1979. He reported
having completed one year of college and having attended
barber school. The veteran's service-connected disabilities
are related to multiple shell fragment wounds sustained
during combat action in Korea in 1951. As a result of a
review of the veteran's service medical records and the
examination conducted by the VA in May 1953, the RO granted
entitlement to service connection for the disabilities of
the left upper extremity, right knee and right hand in July
1953. The record shows that the veteran also has
occupational experience as a clerk.
VA outpatient treatment reports obtained in connection with
the veteran's appeal are dated in 1990 and 1991. These
records show that the veteran has on occasion received
treatment for symptomatic pain associated with his
service-incurred injuries. The record showed that he has,
for the most part, required treatment for diabetes mellitus,
a nonservice-connected disorder. The record shows that the
veteran suffered amputation of his right forefoot which
has been reported to have resulted from an industrial
accident which resulted in termination of his employment in
1979.
Our determination of eligibility to receive a total
compensation evaluation based on individual unemployability
involves an evaluation of the veteran's service-connected
disabilities in association with his educational level and
occupational background. His left minor upper extremity
involves three separate service-connected disabilities which
constitute his most significant impairment with respect to
VA compensation benefits. He is right-handed. The VA
general medical and special orthopedic examinations
conducted by the VA in early 1991 disclosed no evidence of
progressive worsening of any of the veteran's
service-connected disabilities. The service-connected
disabilities have been static in nature for many years and
have, for the most part, been productive of symptomatic pain
which has required infrequent treatment. While the
veteran's declarations and contentions relating an inability
to work as due to his service-connected disabilities have
not been substantiated or corroborated by contemporaneous
medical evidence of record, we are statutorily bound to
extend to them proper cognizance and assess their
credibility. Ferguson v. Derwinski, U.S. Vet. App.
No. 90-472 (Aug. 20, 1991), and O'Hare v. Derwinski, U.S.
Vet. App. No. 90-350 (July 11, 1991). We are sure that the
veteran is sincere in believing that his service-connected
disabilities have rendered him unable to work; however, such
has not been shown by the evidence of record. Undoubtedly,
his service-connected disabilities of the left upper
extremity account for virtually all of his significant
service-connected functional impairment. He has a good
range of right knee and right hand motion. Significant
minor upper extremity functional impairment does not equate
with unemployability. The test of whether a person is
unable to pursue substantially gainful employment is whether
a particular job is realistically within the physical and
mental capabilities of the claimant. Moore v. Derwinski,
U.S. Vet. App. No. 90-133 (July 10, 1991).
The number of jobs the veteran would be able to perform is
somewhat diminished, mainly due to his service-connected
left upper extremity disabilities. Again, this does not
equate with unemployability for all substantially gainful
work. The veteran has one year of college and additional
vocational training, as well as a satisfactory employment
background. His service-connected disabilities, when
evaluated in association with his educational level and
occupational experience, do not allow the Board to conclude
that the veteran has been rendered unemployable for VA
compensation purposes. Any inability of the veteran to work
is clearly not due soley to the disabilities for which
service connection has been granted. We find no basis upon
which to predicate a grant of entitlement to a total
evaluation based on individual unemployability due to the
service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107
(1991); 38 C.F.R. §§ 3.340, 3.341, Part 4, and 4.16 (1991).
ORDER
A total evaluation based on individual unemployability due
to the service-connected disabilities is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
J. E. DAY M. WOLOWITZ
SAMUEL W. WARNER
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.